Thursday, December 13, 2018

Russiagate: Cohen Gets Three Year in the Clink

Between 2012 and 2016, COHEN concealed more than $4 million in personal income from the Internal Revenue Service, avoiding more than $1.3 million in income tax. COHEN also made false statements to a federally insured financial institution to obtain a $500,000 home equity loan. Finally, in 2016, COHEN made or caused two separate payments to women to ensure that they did not publicly disclose their alleged affairs with a presidential candidate in advance of the election. In one instance, COHEN caused American Media, Inc. (“AMI”), which was identified in previous court filings as “Corporation-1,” to make a $150,000 payment to one woman; in the other, COHEN made a $130,000 payment to another woman through an LLC he incorporated for the purpose of making the payment. COHEN was reimbursed for the latter payment in monthly installments disguised as payments for legal services performed pursuant to a retainer, when in fact no such retainer existed. COHEN made or caused both of these payments in order to influence the 2016 election and did so in coordination with one or more members of the campaign.

In addition to the sentence of imprisonment, Judge Pauley also ordered COHEN, 52, of New York, New York, to pay a fine of $50,000, to forfeit $500,000, to pay $1,393,858 in restitution to the IRS, and to pay a mandatory $800 special assessment. Separately, COHEN was ordered to pay a $50,000 fine and to pay a $100 special assessment in the case brought by the SCO. COHEN was also sentenced to concurrent three-year terms of supervised release in both cases, to follow his term of imprisonment.

Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely “primarily related to the candidate’s campaign.” This was done specifically to prevent candidates from claiming that things that benefitted them personally were done because they would also benefit the campaign. And with that in mind, it is worth noting Mr. Cohen’s sentencing statement, in which he writes that he “felt obligated to assist [Trump], on [Trump’s] instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family.” (Emphasis in original.)

Certainly Mr. Trump had many valid, non-electoral reasons for trying to keep these allegations quiet, most notably family harmony, protecting family members (especially his young son, Baron), and preserving his future viability as a television personality in case he lost the election. Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal “personal use” of campaign funds had he made the payments from his campaign treasury.

Finally, by ignoring these other parts of the statute and its implementing regulations (which carry the force of law), the prosecutors attempt to make the “for the purpose of influencing any election” language a subjective test that would, but for the plea bargain, be decided by a jury. But that is incorrect. The test is intended as an objective test of campaign-related expenditures. Renting campaign office space, printing bumper stickers and yard signs, hiring campaign staff, paying for polling, and buying broadcast ads are all obligations that exist for the purpose of influencing an election. Paying hush money to silence allegations of decade-old affairs is not.

When faced with the vague, sweepingly broad “for the purpose of influencing any election” language, the Supreme Court has consistently restricted its reach to brightly defined rules. For example, in determining whether a public message was an “expenditure” made “for the purpose of influencing any election,” it has construed the later phrase to apply only to messages “expressly advocating” the election or defeat of a candidate, such as “vote for,” “vote against,” “defeat,” “re-elect,” and the like, or to other clearly defined messages that are the “functional equivalent” of that express advocacy.

In short, Michael Cohen is pleading guilty to something that isn’t a crime. Of course, people will do that when a zealous prosecutor is threatening them with decades in prison. But his admissions are not binding on President Trump, and Trump should fight these charges ferociously.

MCCARTHY: Ordinarily, if a prosecutor had plans for a big case that was upcoming, the last thing you would do is let a cooperator get sentenced. What you want is the cooperator to testify first at the big trial and then sentence, because the testimony is going to be the most important part of the cooperation. That obviously didn’t happen here. It hasn’t happened, really, with any of Mueller’s cooperators, which leads you to think he doesn’t have anything very big coming down the pike. Cause you wouldn’t let these guys get sentenced first. You’d make them testify first.

We also know that none of the beneficiaries of this slush fund has been threatened with indictment and incarceration for campaign finance violations since suppressing such information, as Rep. Nadler puts it, amounts to committing a fraud on the American people using their own money.

How many of Trump's accusers are guilty of the very infraction they accuse him of? How many defended the practice and fought to keep it secret and escape accountability with the voters? In Trump's case, Professor Alan Dershowitz points out, if he was using his own money to contribute to his own campaign, there is no crime:

Every payment by the Federal Government (and there have been many) made to a staffer or anyone else to hush up is to protect a Congresspersons next election. Let's see them all.

Barr is sure to face questions about these comments at his confirmation hearings.1 It’s hard to know, though, how he might affect Mueller’s work. Some prominent legal experts have said they think that Barr is unlikely to stymie Mueller — regardless of his personal feelings about the legitimacy of the probe — because of his respect for institutional norms. But he is also known for a broad view of executive power, which may mean he has a limited view of whether a prosecutor can, for example, subpoena the president.

Former FBI Deputy Director Andrew McCabe, who arranged the bureau's interview with then-national security adviser Michael Flynn at the White House on Jan. 24, 2017 — the interview that ultimately led to Flynn's guilty plea on one count of making false statements — suggested Flynn not have a lawyer present at the session, according to newly-filed court documents. In addition, FBI officials, along with the two agents who interviewed Flynn, decided specifically not to warn him that there would be penalties for making false statements because the agents wanted to ensure that Flynn was "relaxed" during the session.

The new information, drawn from McCabe's account of events plus the FBI agents' writeup of the interview — the so-called 302 report — is contained in a sentencing memo filed Tuesday by Flynn's defense team.

Citing McCabe's account, the sentencing memo says that shortly after noon on Jan. 24 — the fourth day of the new Trump administration — McCabe called Flynn on a secure phone in Flynn's West Wing office. The two men discussed business briefly and then McCabe said that he "felt that we needed to have two of our agents sit down" with Flynn to discuss Flynn's talks with Russian officials during the presidential transition.

McCabe, by his own account, urged Flynn to talk to the agents alone, without a lawyer present. "I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only," McCabe wrote. "I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants."

Within two hours, the agents were in Flynn's office. According to the 302 report quoted in the Flynn sentencing document, the agents said Flynn was "relaxed and jocular" and offered the agents "a little tour" of his part of the White House.

"The agents did not provide Gen. Flynn with a warning of the penalties for making a false statement under 18 U.S.C. 1001 before, during, or after the interview," the Flynn memo says. According to the 302, before the interview, McCabe and other FBI officials "decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport."

The agents had, of course, seen transcripts of Flynn's wiretapped conversations with Russian then-ambassador Sergey Kislyak. "Before the interview, FBI officials had also decided that if 'Flynn said he did not remember something they knew he said, they would use the exact words Flynn used ... to try to refresh his recollection. If Flynn still would not confirm what he said ... they would not confront him or talk him through it,'" the Flynn memo says, citing the FBI 302.
. . .
The message of the sentencing memo is clear: Flynn, his lawyers suggest, was surprised, rushed, not warned of the context or seriousness of the questioning, and discouraged from having a lawyer present.

I read the pleadings in the Flynn case. The government's sentencing memo paints Flynn as cooperative and helpful but never says what the lie is, just a vague reference to a conversation with the Russian ambassador. The Flynn memo, however, paints a picture of out of control FBI and DoJ. It was an obvious perjury trap (there was nothing to ask since they had wiretapped Flynn), and McCabe (who comes across as a real dirtball) lulled him into a false sense of security by telling Flynn a lawyer was not necessary, decided that Flynn would not be told it was an official interrogation, and the FBI agents would pretend that they were allies of Flynn in counter-terrorism. The conversation was not memorialized until August 2017, 8 months after the interview a 4 months after Mueller's appointment. The government does not contest any of this. Judging from the pleadings, the government is kind of proud they pulled this off. It is hard to imagine more unethical and immoral behavior.

The good news is the judge ordered the government to produce the documents, including any drafts, meaning the judge has concerns too. Here's to hoping the judge orders ahearing to get ot the bottom of these shenanigans

I have looked carefully at each situation where someone has pleaded guilty or otherwise been convicted of perjury as a result of the Mueller Investigation. In each case, I am persuaded they never would have had this problem had they not been associated with me. This is a very important point, and I want to emphasize it: Mueller sent Americans a message that “If you associate with a certain political candidate whom we do not favor, then we will hunt you down, set up perjury traps, bankrupt you with the need to mortgage your home to pay extraordinarily expensive legal fees to defend yourself from baseless charges, and ultimately we still will lock you up.”

I believe this poses the gravest of threats to our democracy. Today it is those who supported the Trump Presidency who were hounded and trapped into perjury. Another time, it might be volunteers for an unpopular Democrat candidate who get hounded into perjuring themselves and going to prison. This threat to our democracy will scare away many from working for legitimate candidates of major parties, fearing they may be hounded and tricked into lying, and get sent away to prison, if they back the losing candidate or even the winner who gets on the wrong side of intelligence officials who have voted for communists like Gus Hall.

As a result, now that the Mueller Investigation has ended, all evidence has been propounded, discovered and produced for review. So now that all the fact-finding is done, I hereby announce, pursuant to the authority extended to me by our Founding Fathers in Article II, Section 2, Clause 1 of the United States Constitution — [that the President] “shall have Power to grant Reprieves and Pardons for Offenses against the United States”— that I hereby grant a complete and absolute pardon to each and every person who entered any plea of guilty for telling the Mueller Team anything short of what their truth was. You all are pardoned. You should not have lied, but you never would have been put into the perjury trap in the first place if not for your political association with me. Therefore, because all your convictions are fruit of the Special Prosecutor’s poisonous tree, you all are pardoned.
. . .
That leaves only one criminal unaddressed, Mr. Michael “Cash Cab” Cohen, formerly one of my many attorneys but the only one who secretly recorded me and who-knows-how-many-other of his clients. I do not know much about the taxi medallion business. I wish him well.

Former Obama Director of National Intelligence James Clapper wrote a letter asking for leniency for the Senate Intelligence Committee’s former security director who pleaded guilty to lying to investigators about his contact with a reporter.

James Wolfe “lied to FBI agents in a December 2017 interview in connection with the FBI’s probe of leaks of information regarding the activities of the Senate Select Committee on Intelligence to various reporters,” his lawyer wrote. “It is a decision, along with his breaking his marital vows and violating his former employer’s rules regarding contacts with the media, that he deeply regrets.”

Clapper submitted a handwritten letter to the judge supporting Wolfe, saying “knowing Jim as I do, I know this whole experience — and its exposure in the media — has been very traumatic for him already. I would hope the court would consider his long and faithful service, as well as what he has endured so far — in sentencing and would recommend minimal confinement.”

Republican intelligence committee chairman Richard Burr and with Democratic ranking member Dianne Feinstein also wrote to “seek leniency in the sentencing of Mr. James Wolfe … we do not seek to diminish the seriousness of the allegations against Jim, nor diminish the significance of misleading federal agents … but we ask that the totality of his service and career be taken into consideration.”

Wolfe, as you might recall clearly leaked a Senate copy of the FISA warrant against Carter Page to his favorite reporter/floozy NYT's Ali Watkins. And the Feds only charged him with a little lie about it. Funny how they never revealed any of the parts that the Republicans want unclassified.

"He has, I think, almost a photographic memory. He has a great capacity for detail," King said on Fox News. "So it’s hard for me to believe that all those questions, he was unable to answer, didn't recall, didn’t remember, so again, I don’t want to be judging his motives, but I’m very, very skeptical of that.

"I was not in the room, but I’m skeptical that a person of his ability and his legal ability was unable to remember the answers to all those questions," he added.